Cho High Court Decision 201Do4957 (Law No. 129, 2012)

A disposition that denies a report made at the conversion price of a building and corrected as an actual acquisition price is justifiable;

Although the Plaintiff reported the conversion value on the ground that the acquisition value of the building is unknown, a disposition that calculated the actual acquisition value based on the Plaintiff’s real estate rental book value, balance sheet, construction contract agreement, etc. is legitimate.

2012Gudan15312 Revocation of Disposition of Imposing capital gains tax

The AA

The director of the tax office.

October 2, 2013

October 30, 2013

1. The part of the conjunctive claim in the instant lawsuit is dismissed.

2. The plaintiff's primary claim is dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

In the first place, the imposition of the capital gains tax belonging to the year 2010 that the Defendant rendered to the Plaintiff on September 16, 201 is revoked.

Preliminaryly, the disposition of imposition by the Defendant on October 13, 201 on the Plaintiff on the transfer income tax of the year 2010 shall be revoked.

1. Details of the disposition;

A. On December 28, 2005, the Plaintiff acquired OO-Gu O-dong 90-3 large 215.5 square meters (hereinafter “instant land”) from OB from O-si, O-si, and newly constructed a building 454.43 square meters (hereinafter “instant building”) on that ground and completed registration of preservation of ownership on February 15, 2007, and transferred the said land and building (hereinafter “the instant real estate”).

B. The Plaintiff reported the transfer income tax on the ground that (i) the acquisition value of the instant land is an OO personnel, and (ii) the conversion acquisition value of the instant building is an OO personnel under the premise that the actual acquisition value cannot be confirmed, and paid the OO personnel among them.

C. On September 16, 2011, the Defendant issued a notice of correction on September 16, 201, that the acquisition value of the instant land was KRW OOO(AOOOwon out of the reported value) and that the actual acquisition value of the instant building was KRW OOOO(i.e., the determined tax amount + the determined tax amount + the additional tax on negligent tax + the additional tax on negligent tax + OOOOOOwon - the voluntarily paid tax amount).

D. On October 13, 2011, the Defendant confirmed that the Plaintiff’s actual amount of tax paid is an OOO won, and decided to impose and collect the unpaid amount of tax (this tax) on and after filing a return on October 13, 201, and on the other hand, an OOO of the additional paid additional tax increased as an OO won.

E. The Defendant: (a) under the premise that the acquisition value of the instant land is KRW OO (a) and (b) the actual acquisition value of the instant building is KRW OO (a) and reduced or revised capital gains tax for the Plaintiff in 2010 on February 9, 2012, on the premise that the actual acquisition value of the instant building is KRW OOO (abb). Accordingly, capital gains tax to be paid by the Plaintiff (i.e., the determined tax amount + KRW OOOwon for the additional tax + KRW OOOO for the additional tax + KRW 100 for the additional tax on negligent return) remains.

F. The Plaintiff underwent the pre-trial procedure.

[Ground of recognition] Facts without dispute, Gap 1 through 3, 27 through 31, Eul 1, 2 and the purport of the whole pleadings

2. Judgment on the main claim of this case

A. The plaintiff's assertion

① The actual acquisition value of the instant land is an OO personnel, and ② the actual acquisition value of the instant building cannot be confirmed; thus, the acquisition value should be calculated at the conversion value. ③ Even if the actual acquisition value of the instant building is verified, the OOO personnel of the civil construction cost spent forCC construction should be added to the necessary expenses. Therefore, the disposition imposing capital gains tax on September 16, 201 (the remainder excluding unpaid amount OOOO personnel after filing a report among the OO members of the tax amount payable by the Plaintiff, and the additional amount less than 10 won, but less than 10 won) is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

C. Determination

(1) Whether the actual acquisition value of the instant land is an OOO

In a lawsuit seeking revocation of a disposition imposing income tax, the burden of proof on the tax base, which is the basis of taxation, is on the tax authority, and the tax base is deducted from necessary expenses, so the tax authority should bear the burden of proof on revenue and necessary expenses in principle. However, since most of the facts that generated necessary expenses are in the sphere under the control of the taxpayer, and the tax authority is difficult to prove. Thus, if it is reasonable to prove the taxpayer in consideration of difficulty in proof or equity between the parties, it accords with the concept of fairness to recognize the necessity of proof on the taxpayer (see, e.g., Supreme Court Decision 2006Du16137, Oct. 26, 2007).

According to the overall purport of Gap 7 through 13 and 15 through 19, Daehan, whose husband was the plaintiff's husband at the time, remitted OE to the person "E" on October 31, 2005, Daehan remitted OE to the former owner of the land at issue on November 9, 2005, respectively, OOE and OE on the following day. The plaintiff sold OF apartment 7 and 503 OOE to the former owner on November 27, 2005, but it is difficult to recognize that the plaintiff transferred 20OE OE to the above 200 OE 20,000 won on December 20, 2005, the plaintiff's mother, transferred OE 200,000 won on the above OE 20,000 won on the loan of the land at issue.

Therefore, this part of the plaintiff's assertion is without merit.

(2) Whether the acquisition value of the instant building should be calculated at the conversion price

In principle, the tax base and amount of income tax shall be determined by the actual amount revealed by the method of the on-site investigation, and in order to determine it by the method of the on-site investigation, it shall be exceptionally permitted only when there is no taxpayer’s account books or documentary evidence or any other material part is incomplete or false and there is no other way for the tax authorities to disclose the actual amount of income. Thus, the reason that the taxpayer himself/herself wants to investigate and determine the actual amount of income by the method of estimation cannot be deemed as satisfying the requirements of the on-site investigation (see, e.g., Supreme Court Decision 97Nu20304, Jan. 15, 1999). Meanwhile, the on-site investigation to determine the tax base of income tax under the Income Tax Act does not have any special method limit, and if it is based on a certain taxation data, it shall be deemed as a lawful on-site investigation (see, e.g., Supreme Court Decision 2003Du142

According to the overall purport of Gap 1, Eul 1, Eul 1, and 3 through 7-2, the plaintiff engaged in the lease business in the building of this case. The plaintiff's statement of the total amount of income, such as lease deposit, etc. (2) (the taxable period from January 1, 2007 to December 31, 2007)", "Director of Account (the period from January 1, 2007 to December 31, 2007)" and "Standard Balance Sheet of 2009" stated all the value of the building of this case as OOOO's won. The plaintiff did not have any actual acquisition value of the building of this case between the plaintiff and HH Construction Co.,, Ltd. on May 23, 2006, based on the fact that the plaintiff did not have any real acquisition value of the building of this case as the price of OOO's construction contract for the construction work of this case, and the defendant did not have any real acquisition value of the building of this case as the plaintiff's construction.

Therefore, the plaintiff's assertion on this part is without merit.

(3) Whether an OOO of the cost of civil works should be deemed as a necessary expense

According to the statements in Gap 22 through 25, the highest KK's representative director completed the civil engineering works among the new construction works of the plaintiff and Yang L-L around May 16, 2006, and the plaintiff and Yang L-L demanded to pay OO members, excluding the amount of approval, out of the adjusted amount of OO's settlement, and both L-L sent to the highest K-L meeting on June 26, 2006. It is difficult to recognize that the defendant's order of correction of the construction work of the building of the building of the building of the building of the building of the same 90-3 building of the same O, which was executed by the plaintiff and Yang L-L: the plaintiff's order of correction of the construction cost of the building of the building of this case was rejected by asserting that the plaintiff's order of correction of the construction cost of the building of this case is an amount exceeding 60O, 200, 200, 200, 200.

Therefore, the plaintiff's assertion on this part is without merit.

(4) Ultimately, the Defendant’s imposition of capital gains tax on September 16, 201 against the Plaintiff is lawful.

3. Judgment on the conjunctive claim of this case

Since the Plaintiff sought revocation of the disposition imposing capital gains tax on October 13, 201, the Plaintiff filed a claim for revocation of the disposition, the Defendant’s decision on October 13, 201 does not constitute a disposition subject to an appeal litigation, and thus, the instant lawsuit seeking revocation is unlawful. The Defendant’s decision on October 13, 2011 does not constitute a disposition subject to an appeal litigation, and thus, does not constitute an action seeking revocation of the disposition.

4. Conclusion

The conjunctive claim in the lawsuit of this case is dismissed as unlawful, and the main claim is dismissed as it is without merit.